The purpose of this essay is to explore the influence of "legalism" on the judicial judgment concerning the issue of ex-"comfort women." It is a very simple question that I would like to answer by examining the legal concept of justice within the context of contemporary North American political theory. That is, why can the government of Japan and most Japanese people believe that the government of Japan does not have to take any legal responsibility in response to the claims to justice from ex-"comfort women, " even though they say that it does have a moral responsibility? Why is it "not unjust" to ex-comfort women from the judicial point of view that the Japanese government has been refusing to take any responsibility for the horror of the Japanese military's institutionalization of sexual slavery during the War?
Firstly, I define the character of "legalism" in accordance with the criticism of "legalism" by Judith Shklar. She asserts that legalism treats law as an entity distinct from all political moral and values. She also equates the normal model of justice which legalism presupposes with distributive justice. When we look back to the history of theories of justice, Aristotle identified two forms of justice; one is distributive justice and the other, corrective. However, as we see in contemporary arguments on justice, especially after John Rawls' A Theory of Justice, the latter seems to have been curiously dismissed. Because distributive justice means proportional equality or fairness within the context of the particular political institution, it necessarily reflects the concept of common good within the community. On the other hand, corrective justice tends to be ignored or regarded as having nothing to do with the political. In this sense, we can understand the reason why Shklar equated the normal model of justice with distributive justice.
Thus, theories of justice, have been focusing on the matter of what just principles of distributive justice are. However, this tendency is blinkered to many issues about domination and past injuries which have not yet been rectified. If we are responsive to existing social relations where inequalities or domination have not been swept away, we need to take seriously the political problem on how we can reshape them as a crucial issue of justice.
